Marc Rosenberg

This is a costs endorsement following an appeal regarding a receivership of public sector organizations operating affordable housing.

The appellants sought costs for a re-argued motion and the appeal.

The Court of Appeal rejected the 'hours times rates' approach, noting that public sector organizations should not be expected to pay full indemnity hourly rates and the hours docketed were excessive.

The court fixed the costs of the re-argued motion at $15,000 and the costs of the appeal at $30,000.

The appellant appealed his convictions for sexual assault, obstruct justice, assault with a weapon, and assault, as well as his sentence of four years and four months.

He argued the trial judge erred by failing to give a limiting instruction on prior consistent statements and by improperly applying Gladue principles during sentencing.

The Court of Appeal dismissed the conviction appeal, finding no substantial wrong or miscarriage of justice regarding the prior statements.

The sentence appeal was allowed only to the extent of granting credit for 34 days of pre-sentence custody, varying the sentence on one count to one month consecutive.

The appellant pleaded guilty in 1992 to criminal negligence causing the death of his infant son, based on flawed expert evidence from Dr. Charles Smith regarding Shaken Baby Syndrome.

Following the Goudge Inquiry, fresh expert evidence revealed that the infant's death was likely caused by natural disease processes or birth trauma, and that the triad of symptoms relied upon by Dr. Smith was not diagnostic of non-accidental head injury.

The Crown conceded the appeal.

The Court of Appeal admitted the fresh evidence, set aside the guilty plea to prevent a miscarriage of justice, quashed the conviction, and entered an acquittal.

The appellants' outdoor in-ground swimming pool was damaged by hydrostatic uplift pressure.

Their property insurance policy contained a common exclusion for settling, expansion, contraction, moving, bulging, buckling or cracking, as well as an exclusion for outdoor swimming pools.

The appellants had purchased an endorsement specifically covering their outdoor swimming pool, which stated that all other terms, conditions, and exclusions remained unchanged.

The application judge held that the common exclusion applied, denying coverage.

On appeal, the Court of Appeal held that applying the common exclusion to the endorsement would render the coverage for the most obvious risks nugatory, virtually nullifying the coverage.

The appeal was allowed, and a declaration of coverage was granted.

The appellant employer appealed a trial judgment, arguing the respondent employee failed to mitigate her damages by not returning to work.

The Court of Appeal dismissed the appeal, finding the trial judge correctly applied the test from Evans v. Teamsters Union and that the evidence supported the conclusion that the respondent was not required to return to work.

The appellant appealed the dismissal of a habeas corpus application regarding the refusal to transfer him from a medium security institution to a minimum security institution.

The Court of Appeal dismissed the appeal, finding that the appellant was treated fairly and that there were ample reasons for the medium security designation, including his membership in a criminal organization.

The appellant appealed his assault conviction, arguing the trial judge misapprehended evidence regarding when he knew of the allegations and failed to address all evidence concerning recent fabrication.

The Court of Appeal dismissed the appeal, finding the trial judge's interpretation of the evidence was not unreasonable and noting the trial judge properly relied on independent evidence from a social worker to reject the recent fabrication claim.

The appellant appealed his conviction, arguing the trial judge improperly used his failure to testify to bolster the Crown's case, contrary to R. v. Noble.

The Court of Appeal found that the trial judge did not use the failure to testify as evidence to strengthen the case, but merely noted there was no other explanation for an otherwise overwhelming case.

The appeal from conviction was dismissed, and the sentence appeal was abandoned.

The appellant appealed his conviction for driving without insurance under the Compulsory Automobile Insurance Act.

He had previously failed to attend court due to language difficulties and was unsuccessful in reopening his case.

The appellant presented new evidence, confirmed by the Crown, that he was actually insured at the time he was stopped.

The Crown conceded the appeal, and the Court of Appeal allowed the appeal, entering an acquittal and ordering the remission of any fine paid.

The appellant, who was found not criminally responsible for assault charges, appealed a decision of the Ontario Review Board continuing his detention in a maximum security facility.

The Court of Appeal found that while the Board reasonably concluded the appellant remained a significant threat to public safety, it erred in principle by failing to adequately consider his cultural and linguistic isolation and whether his current placement was the least onerous and least restrictive disposition under s. 672.54 of the Criminal Code.

The appeal was allowed and a new hearing ordered.

The appellant sought an adjournment of his appeal after failing to comply with a previous order requiring him to bring a motion for an adjournment by a specified date.

The Court of Appeal granted the adjournment to ensure fairness, as the appellant was in the process of retaining counsel.

The adjournment was granted on strict conditions, including the payment of $8,673.39 in costs by a specified date, failing which the respondent could move to dismiss the appeal.

The appellant appealed his convictions for firearms and drug offences, arguing his arrest and the subsequent search of his vehicle violated his Charter rights.

The Court of Appeal found the police had reasonable grounds for the arrest based on confidential informer tips and surveillance.

Applying the Grant framework, the court held that even if a Charter breach occurred, the evidence was admissible under s. 24(2).

The appellant also appealed his six-year sentence, seeking an adjustment to avoid deportation consequences under the Immigration and Refugee Protection Act.

The court dismissed the sentence appeal, holding that immigration consequences cannot justify an unfit sentence.

The Crown appealed the respondent's acquittal on firearms offences after the trial judge excluded evidence under s. 24(2) of the Charter, finding the police lacked objective reasonable grounds for arrest.

The Court of Appeal allowed the appeal, holding that the trial judge erred by failing to give weight to the informer's credibility and by compartmentalizing the surveillance evidence.

The Court found that the totality of the circumstances, including the reliable tip and corroborating surveillance of a rental car and suspicious handling of a shoebox, provided reasonable grounds for the arrest and subsequent search.

The appellants sued the respondent police officers and municipality for negligent and malicious investigation after criminal charges against the appellant were dropped.

The motion judge dismissed the action as statute-barred under the six-month limitation period in the Public Authorities Protection Act.

On appeal, the Court of Appeal held that while the cause of action arose when the charges were dropped rather than upon arrest, the claim was still issued one day late.

The Court further held that the 'special circumstances' doctrine does not permit the commencement of a new action after a limitation period expires, and that the respondents did not require leave under Rule 2.02 to bring their motion.

The appellant appealed his conviction for aggravated assault, arguing the trial judge erred in rejecting his self-defence claim under s. 37 of the Criminal Code by focusing solely on the complainant's injuries.

The incident, captured on video in a holding cell, showed the appellant provoking the complainant and then punching him once in the face, causing serious injuries.

The Court of Appeal dismissed the appeal, finding the trial judge properly considered the video evidence and the injuries to determine that the force used by the appellant was excessive in the circumstances.

The appellant was convicted of conspiracy to traffic in cocaine and trafficking in cocaine following a jury trial.

The Crown's case relied heavily on the evidence of a police informant and hearsay statements made by an alleged co-conspirator.

On appeal, the appellant argued the trial judge misdirected the jury on the application of the co-conspirators' exception to the hearsay rule, particularly given it was a two-person conspiracy and the Crown sought to rely on statements made after the conspiracy alleged in the indictment.

The Court of Appeal agreed, finding the jury instructions failed to properly isolate the findings required before hearsay evidence could be used against the appellant.

The appeal was allowed and a new trial ordered.

The 16-year-old applicant was charged with second degree murder and attempted murder.

He was initially ordered detained solely on the tertiary ground under s. 515(10)(c) of the Criminal Code.

The applicant sought a review of the detention order.

The Court of Appeal found that the application judge erred by failing to consider releasing the youth to a responsible person under s. 31 of the Youth Criminal Justice Act.

Additionally, fresh evidence from the preliminary inquiry showed the Crown's case was less compelling than originally presented.

The Court granted the application and ordered the youth released into the care of his grandparents under strict conditions, including house arrest.

The appellant appealed his conviction for fraud on the public, arguing the trial judge provided inadequate reasons, failed to instruct herself on the dangers of unconfirmed evidence, and rendered inconsistent verdicts.

The Court of Appeal dismissed the appeal, finding the trial judge's decision rested on independent evidence establishing the appellant's intent to defraud by inflating revenue figures.

The court also found the verdicts were not inconsistent, as the fraudulent intent was formed after the loans were made but before the public relied on the false financial statements.

The Crown's appeal of the acquittals was dismissed as abandoned.

The appellant commenced a fraudulent conveyance action against the respondent, which was stayed when the respondent filed for bankruptcy.

The appellant later obtained an order under s. 38 of the Bankruptcy and Insolvency Act to bring proceedings in its own name.

The motion judge dismissed the action as statute-barred, finding that the trustee's discoverability date governed.

The Court of Appeal allowed the appeal, holding that under s. 12(1) of the Limitations Act, 2002, the relevant discoverability date is the earlier of the trustee's or the creditor's.

Since the creditor discovered the claim before the new Limitations Act came into force, no limitation period applied.

The appellant law firm appealed an order dismissing its motion to set aside the respondent's automatic discharge from bankruptcy.

The Court of Appeal upheld the decision, agreeing that the appellant would not discover anything new and material through the bankruptcy process and that a discharge hearing would not have led to terms with practical significance for recovery.

The court noted the appellant could seek an order under s. 38 of the Bankruptcy and Insolvency Act to pursue a receivable owed to the respondent.

The appeal was dismissed with no costs.